Sherman v. Yarger, 41.

• Decision Date: 09 September 1935
• Docket Number: No. 41.,41.
• Citation: 272 Mich. 644,262 N.W. 318
• Parties: SHERMAN v. YARGER.
• Court: Michigan Supreme Court

272 Mich. 644

262 N.W. 318

SHERMAN

v.YARGER.

No. 41.

Supreme Court of Michigan.

Sept. 9, 1935.

Action by Gaylord Sherman, by his next friend, Jacob M. Vander Wal, against Max Yarger. Judgment for defendant, and plaintiff appeals.

Affirmed.

Appeal from Superior Court of Grand Rapids; Thaddeus B. Taylor, judge.

Argued before the Entire Bench.

Allaben & Wiarda, of Grand Rapids, for appellant.

Rodgers & Dunn, of Grand Rapids, for appellee.

BUSHNELL, Justice.

This case involves the application of that portion of the Motor Vehicle Law commonly known as the Guest Act (No. 19, Public Acts 1929), which reads: ‘Provided, however, That no person, transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence of wilful and wanton misconduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton misconduct contributed to the injury, death or loss for the which the action is brought.’ 1 C. L. 1929, § 4648.

The appeal alleges as error a directed verdict for the defendant, following the close of plaintiff's case and before any testimony was offered by the defendant. Both parties to the action are under 21 years of age, and, with others, were returning from a picnic supper. Defendant was driving his Ford roadster, in which plaintiff was sitting in the rumble seat section on the floor, the cushion having been removed. Two girls, not called as witnesses, were also in the car, one stated with plaintiff and the other with defendant. The car stopped on route and another member of the party, Merton Rogers, climbed onto the tire carrier and refused to get off. Defendant denies driving his car so as to throw Rogers off, but there is testimony by plaintiff that Yarger said to Rogers, ‘Well, I will get you off in some way,’ and started up his car almost fast enough to spin the tires. The road in Townsend Park, through which the parties were traveling, is hilly, with short, sharp curves. Before reaching the curves, Rogers climbed into the left-hand side of the rumble seat space, where he stood until the accident. The first curve was negotiated in safety, although Sherman bojectedto the speed at which Yarger was driving by calling out in a loud voice. While traveling at about the same speed, a tree loomed up, apparently in the center of the road; Yarger applied his brakes and skidded into the tree, throwing Sherman onto the metal corner of the rumble seat, causing ‘severe and serious injury.’ The record shows that the day of the accident was the first time Yarger had ever been in the park.

Does the testimony establish sufficient facts to require the determination of defen...